# C_2007211EN.01002301.xml

| 8.9.2007 | EN | Official Journal of the European Union | C 211/23 |
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8.9.2007

EN

Official Journal of the European Union

C 211/23

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Appeal brought on 5 July 2007 by Koldo Gorostiaga Atxalandabaso against the order of the Court of First Instance (Second Chamber) delivered on 24 April 2007 in Case T-132/06, Gorostiaga Atxalandabaso v European Parliament

(Case C-308/07 P)

(2007/C 211/43)

Language of the case: French

Parties

Appellant: Koldo Gorostiaga Atxalandabaso (represented by: D. Rouget, lawyer)

Appellant:

Other party to the proceedings: European Parliament

Other party to the proceedings:

Form of order sought

| — | declare this appeal to be well-founded and, consequently, annul the order of the Court of First Instance of 24 April 2007; |
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declare this appeal to be well-founded and, consequently, annul the order of the Court of First Instance of 24 April 2007;

| — | give a definitive ruling on the proceedings and annul the decision of the Secretary General of the European Parliament of 22 March 2006, ordering the reimbursement by the appellant of a sum of EUR 118 360,18 and proceeding to make a deduction from various parliamentary allowances owed to the appellant by the Parliament; |
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give a definitive ruling on the proceedings and annul the decision of the Secretary General of the European Parliament of 22 March 2006, ordering the reimbursement by the appellant of a sum of EUR 118 360,18 and proceeding to make a deduction from various parliamentary allowances owed to the appellant by the Parliament;

| — | order the defendant to pay its own costs and those incurred by the appellant. |
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order the defendant to pay its own costs and those incurred by the appellant.

Pleas in law and main arguments

The appellant makes six pleas in support of his appeal.

In his first plea, the appellant challenges the use of Article 111 of the Rules of Procedure of the Court of First Instance, which he claims denies him the right to a fair trial since he has neither been given prior opportunity to express his views before the Court of First Instance nor been able to reply to the Parliament's arguments.

In his second plea, the appellant submits that the principle of impartiality has been infringed since the same judges ruled on the substance of the two successive actions which he brought in Cases T-146/04 and T-132/06 — which gave rise, respectively, to the judgment of 22 December 2005 and to the order of 24 April 2007. That principle demands that a judge cannot hear and determine, even at the same level of jurisdiction, a case based on facts which are identical, or sufficiently connected, to those of a case on which he has ruled previously.

In his third plea, the appellant claims that the Court incorrectly interpreted the scope of the judgment of 22 December 2005. Since the decision taken by the Secretary General of the Parliament on 24 February 2004 had been annulled as ultra vires, the appellant in fact had no reason to lodge an appeal against that judgment before the Court of Justice, since the effect of the finding of ultra vires by the Court of First Instance was that the flawed decision did not exist.

ultra vires

ultra vires

In his fourth plea, the appellant challenges the Court's automatic refusal to take into account the arguments which he had put forward to obtain the annulment of the decision of the Secretary General of the Parliament of 22 March 2006. He submits that that last decision is in fact a new decision, separate from the decision of 24 February 2004, and the Court therefore had a duty to examine all the pleas, of substance and procedure, which he had put forward to challenge it.

In his fifth plea, the appellant criticises the Court for having refused to consider the plea alleging force majeure, even though no such plea had been raised in the action brought against the decision of 24 February 2004.

force majeure

Lastly, in his sixth plea the appellant criticises the Court for having misinterpreted the principle of sound administration by refusing, inter alia, any reference to the Code of Good Administrative Behaviour adopted by the Parliament on 6 September 2001.

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